Supreme Court upholds states' Clean Water Act power in Warren case

The U.S. Supreme Court has upheld state Clean Water Act certification in hydropower licensing cases, saying certification is essential to preserve state authority to address a broad range of pollution. The May 15 decision affirms a Maine court ruling that hydroelectric projects owned by S.D. Warren Co. must be certified by the state under CWA Section 401.

Warren operates five hydro projects on the Presumpscot River totaling 7.45 MW. The company, which applied for water quality certifications under protest during relicensing, is operating the projects under relicense orders that include state requirements to maintain minimum stream flows and to pass certain fish and eels.

Warren had asked the Supreme Court to overturn a Supreme Judicial Court of Maine ruling that any operating hydro project is making a "discharge" into U.S. waters, regardless of whether it adds anything to the water that passes through its turbines.

Justice David Souter delivered the opinion for the court, noting the dispute did turn on the meaning of the word "discharge," the key to whether an activity is subject to state certification under CWA Section 401. The court disagreed with S.D. Warren's interpretation of "discharge" and held that a dam does raise a potential for a discharge, and state approval is needed.

"State certifications under Section 401 are essential in the scheme to preserve state authority to address the broad range of pollution," the high court said. "Reading Section 401 to give 'discharge' its common and ordinary meaning preserves the state authority apparently intended."

NHA: Court fails to resolve federal-state regulatory conflict

In its assessment of the ruling, the National Hydropower Association said hydro projects have obtained 401 certifications for 30 years as part of licensing, and the practice will continue unchanged after the Supreme Court's decision.

However, NHA expressed disappointment that the high court failed to comment on what happens when a state, through its 401 process, establishes a condition that conflicts with federal policy or a federally imposed condition. NHA noted that several justices raised the policy question during arguments Feb. 21.

"The issue of a possible disagreement between the federal government and a state is a serious matter of national importance, especially as the United States desperately searches for more domestic sources of climate-friendly energy and works to protect environmental resources," NHA said. "NHA is concerned that a state, using 401, could shut down a clean, non-polluting hydropower project; a situation Congress did not envision when it passed the Clean Water Act."

American Rivers President Rebecca Wodder hailed the Supreme Court's decision, calling it "a victory for rivers, for the clean water, and most of all for good old common sense." She said S.D. Warren's challenge, had it been successful, could have rendered states incapable of setting even basic conditions for the operation of hydropower dams within their borders.